Sympathy For The Taxman

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Nick Confessore has an interesting piece in The New York Times today that delves a little deeper into how (and why) the IRS may have been examining somewhat more closely the various conservative groups that sprang up in the wake of the Supreme Court's Citizens United decision, which is what led somehat directly to the bureaucratic dumbassery in Cincinnati that's got everyone in DC all hot and bothered. Confessore's reporting indicates that, faced with a staggering amount of new work, the IRS may have simply picked what it believed were easier groups to examine, leaving alone the huge 501(c)(4)'s of the type founded by Karl Rove, at least partly because the latter were able to afford better lawyers. However, I thought the more interesting element of the story was how Citizens United forced upon the IRS the job of regulating the insane way we have allowed money to drown our political system.

Almost all of the groups in question are organized under 501(c)(4) of the tax code, which regulates nonprofit groups engaged in promoting "social welfare." At least 16 such organizations spent a million dollars or more on campaign advertising in the 2012 elections. (Crossroads GPS and Priorities USA also run "super PACs" with similar names that spent millions more.) But because they purport to be engaged primarily in issue advocacy, not election advocacy, tax-exempt groups are not closely regulated by the Federal Election Commission. That task falls, instead, to the I.R.S., which can take years to investigate problems and is required to do so in strict secrecy. Some groups, like Crossroads, filed applications for I.R.S. tax-exempt status, claiming that they would be engaged primarily on research and educational activities but spending the bulk of their money on what appears to be political advertising. Others, like the American Tradition Partnership, operate for years at a stretch without filing federal tax returns, in seeming violation of the law. Many boast of their impact on political campaigns. But while a few of the big groups have faced delays in having their tax exemptions recognized by the I.R.S., none appear to have received the intense scrutiny given the Tea Party groups, which were asked dozens of questions about spending on political advertising and other election activities. Of 15 such groups represented by Jay Sekulow, a lawyer with the American Center for Law and Justice, none spent a dollar on broadcast advertising from 2009 through 2012, according to the Campaign Media Analysis Group.

This is just another example of how we have come to use taxes and the tax code as an instrument to create and sustain public policy. We do not appropriate money directly for X — Because government spending baaaaaaaaddd!!! — and, instead, we arrange tax breaks, and tax credits. That puts the IRS in our daily lives more often than simply the late hours of every April 15. Now, because of the enforced toothlessness of the FEC, we have the IRS tasked de facto with the job of regulating campaign spending, which is a bad idea in theory and now looks even worse in practice. It was bound to get tangled up in politics somehow.

But it is not clear exactly how much such groups can spend on elections, thanks to decades worth of vague and sometimes contradictory laws, regulations and court decisions. The tax code states that 501(c)(4)'s must operate "exclusively" to promote social welfare, a category that excludes political spending. Some court decisions have interpreted that language to mean that a minimal amount of political spending would be permissible. But the I.R.S. has for years maintained that groups meet that rule as long as they are not "primarily engaged" in election work, a substantially different threshold.